FEDERAL ENERGY REGULATORY COMMISSION WASHINGTON, D.C. 20426 FACT SHEET AUGUST 8, 2006 ENERGY POLICY ACT OF 2005 Significant Policy Changes The Energy Policy Act of 2005 (EPAct) is the first major energy law enacted in more than a decade, and makes the most significant changes in Commission authority since the New Deal’s Federal Power Act of 1935 and the Natural Gas Act of 1938. In passing EPAct, Congress signaled a strong vote of confidence in the Commission. The Commission has taken on new duties and authorities with a sense of purpose, mindful of the public trust they entail. Moreover, the Commission has been dedicated to meeting these obligations within the time allotted by Congress. EPAct had three principal policy goals in the areas of the statute that relate to the Commission: (1) it reaffirmed a commitment to competition in wholesale power markets as national policy, the third major federal law in the last 30 years to do so; (2) it strengthened the Commission’s regulatory tools, recognizing that effective regulation is necessary to protect the consumer from exploitation and assure fair competition; and (3) it provided for development of a stronger energy infrastructure. EPAct granted the Commission significant new responsibilities and significant new authority to discharge these responsibilities by modifying the Federal Power Act, the Natural Gas Act and the Public Utility Regulatory Policies Act of 1978 (PURPA). New Responsibilities Significant new responsibilities include: • overseeing the reliability of the nation’s electricity transmission grid; • implementing new tools, including penalty authority, to prevent market manipulation; • providing rate incentives to promote electric transmission investment; • supplementing state transmission siting efforts in national interest electric transmission corridors; and • reviewing certain holding company mergers and acquisitions involving electric utility facilities, a well as certain public utility acquisitions of generating facilities. EPAct also specified a number of actions to be taken by the Commission. In fulfilling these requirements during the first year since EPAct was signed into law on August 8, 2005, the Commission has promulgated nine final rules, issued three additional notices of proposed rulemaking, authored and submitted seven reports to Congress, and entered into a memorandum of understanding with the Commodity Futures Trading Commission. The Commission has taken these actions in a timely manner – meeting every deadline set for the Commission in EPAct. Some of these deadlines were challenging, particularly the task of implementing the repeal of the Public Utility Holding Company Act of 1935 (PUHCA 1935) and promulgating a new rule to implement the Public Utility Holding Company Act of 2005, as well as implementing rules to address the Commission’s expanded corporate transaction review authority under the Federal Power Act. Market Manipulation EPAct gave the Commission the authority to issue rules to prevent market manipulation in jurisdictional wholesale power and gas markets, and in jurisdictional transmission and transportation services. For the Commission, this is one of the most important and challenging provisions of the Act. Congress granted this authority out of recognition that wholesale power and gas markets had changed dramatically since the 1930s. While the Commission’s legal duty remains the same – protecting the wholesale power and gas customer – it needed additional regulatory tools to discharge this duty. EPAct gives the Commission civil penalty authority, which the Commission has indicated it will exercise carefully by assuring that its market manipulation rules are clear. That will make it easier for regulated entities to assure compliance, and make it easier for the Commission to identify violations. Electricity Reliability and Infrastructure EPAct significantly augmented the Commission’s electricity authorities. Perhaps the most important of these are the provisions governing reliability of the bulk power system. For the first time, the Commission was granted authority to oversee mandatory reliability standards governing the nation’s electricity grid. The Commission finalized rules on the certification of an Electric Reliability Organization (ERO) and on procedures for the establishment, approval and enforcement of mandatory electric reliability standards. The Commission has now certified the ERO and issued a preliminary staff assessment of 102 reliability standards filed by the ERO for Commission approval. EPAct also contained a number of provisions directed at expanding and modernizing the nation’s electricity grid. The Commission has issued a rule on electric transmission pricing reforms designed to promote needed investment in energy infrastructure and benefit energy customers. This will bolster power grid reliability and lower costs for delivered power by reducing transmission congestion. In addition, the Commission issued a rule to require transmission organizations with organized electricity markets to make available to load-serving entities long-term firm transmission rights that satisfy certain guidelines. This will help customers who want to make long term supply arrangements. These customers want to be able to enter into long term transmission service arrangements without being exposed to unhedged congestion cost risk. The final rule goes far to reduce the risk exposure to transmission customers, and is important to development of the grid. EPAct addressed the difficulties of siting major new transmission facilities. It authorized the Secretary of Energy to designate “national interest electric transmission corridors” where there is major transmission congestion. EPAct allows applicants seeking to build transmission within these corridors to seek construction permits from the Commission under certain conditions. While most transmission projects will continue to be sited by states under state law, EPAct granted the Commission this important supplemental siting authority. FERC has proposed rules on transmission siting that will govern the issuance of construction permits by the Commission for projects that meet the statutory criteria. Also with respect to transmission, the Commission signed a Memorandum of Understanding with the Department of Energy and other federal agencies with authority to issue federal authorizations for electric transmission facilities to establish a coordinated federal review and permitting process that continues strong federal environmental protections. In addition to the provisions relating to transmission grid improvements, EPAct addressed a significant generation issue within the jurisdiction of the Commission. Pursuant to directives in EPAct, the Commission tightened the thermal efficiency requirements for qualifying cogeneration facilities under PURPA. These rules should limit the potential for abuse under PURPA, curtail sham transactions, and prevent new PURPA “machines.” At the same time, the rules support the development of new cogeneration facilities that truly conserve energy, by ensuring that new qualifying cogeneration facilities use thermal output in a productive and beneficial manner, and that the electrical, thermal, chemical or mechanical output of new qualifying cogeneration facilities is used fundamentally for industrial, commercial or institutional purposes. Also pursuant to EPAct amendments to the Federal Power Act, the Commission eliminated ownership restrictions on qualifying cogeneration and small power production facilities. Only minor changes to the Commission’s hydroelectric regulations were enacted with the passage of EPAct. For example, the first action the Commission took upon enactment of the law was to extend the Flint Creek Project preliminary permit for three years. Pursuant to section 241 of EPAct, the Commission has worked with other resource agencies to develop mandatory license conditions that are fairer and more balanced. The Commission also has issued a guidance document to help hydropower licensees seeking renewable tax credit certification for incremental energy gains from efficiency improvements. Natural Gas Infrastructure Pursuant to EPAct, the Commission has acted to encourage more investment in the nation’s natural gas infrastructure. In order to promote the expansion of natural gas storage capacity and mitigate natural gas price volatility, the Commission has issued new rules for allowing market-based rates for interstate natural gas storage. To decrease the time needed for creating a complete application for new liquefied natural gas (LNG) terminals, the Commission adopted a rule requiring potential developers to initiate pre-filing procedures at least six months prior to filing a formal application with the Commission. The Commission has proposed rules to implement provisions that grant authority to coordinate the processing of federal and state authorizations required under federal law for natural gas projects, as well as maintain a consolidated record of decisions for judicial review. Mergers and Acquisitions Pursuant to EPAct, the Commission implemented the repeal of PUHCA 1935 and the provisions of a new PUHCA 2005. PUHCA 2005 permits Commission access to books and records of holding companies and their members if necessary for determining jurisdictional rates. The Commission implemented PUHCA rules governing accounting, record retention and reporting, including certain blanket waivers and exemptions, within the deadlines in EPAct. Along with the